FS&PO and adjudicated decisions

WizardDr

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I was a little surprised at the tone is some of the exchanges and I thought another view might help matters.

Padraic Kissane and Brendan Burgess have a lot of experience in dealing with the FSPO.

All are agreed that the former FSPO chief became overly technical as they had been slapped back by a few judgments and he then decided that he would have to be technical.

As far as I know PK has had a number of cases decided by FSPO overturned by the Courts. [previous chief]

BB has had remarkable success with particularly AIB 'prevailing rate' issue that not alone affects 100s of cases but showed that the AIB Panel were not at the races. In fact the perverse cases looked at by AIB Panel would suggest that NONE of the original cases would have been upheld by them either. That Panel is a total shambles.

If you do not present key facts the FSPO will not put them in for you unlike UK version. To me this is still a fundamental weakness as professional fees wont be paid but Mr Kissane often has facts from the 100s of successful cases and is worth a referral.

Astonishingly the EU have issued a document in July 2019 on the ancient Unfair Contract Terms and there are some interesting decisions about this and also some decisions imminent that will really upset the Irish Banks.

The notion that a clause in your letter of offer affecting what happens after a fixed rate is now likely to be an unfair term. This would go the root of many tracker issues as you would have had to dig the old letter of offer out of the attic if you even had it. That is something that should be changed immediately.

A consequence of the late arrival (about 6 years late) the Central Bank investigation flipped many decisions_on their head and then there was the thorny issue should not every tracker case that was shot down by former FSPO not be thrown in the bin. A lacuna as the legal brotherhood would say.

Then there is the issue as to whether the FSPO is bound by the UCT as regards testing for unfair terms regardless of what the complainant put in.

One thing that was put into law is the ability to get around the 6 year rule which is helpful/.

Do not therefore be surprised that confusion reigns.
 

MaxGordon

Registered User
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25
I was a little surprised at the tone is some of the exchanges and I thought another view might help matters.

Padraic Kissane and Brendan Burgess have a lot of experience in dealing with the FSPO.

If you do not present key facts the FSPO will not put them in for you......
I am not sure if this is directed at me, at least in part.

PK did advise me at the start and told me that my case was rock solid.

My issue is not that I did not present key facts to the FSPO, it's that he didn't interpret the key facts fairly and did not even comment on some of the facts mentioned.

As I said in my first post, I recognise that most people's experience with the current ombudsman has been positive.

It seems like that the fair takeaway is that he often gets it right but that he does make mistakes on occasion. I think that I fall into this latter category and there is really nowhere for me to go now.

Whilst my experience has been bad, I do not wish to question his integrity. Maybe he is just swamped by a massive workload and is trying his best, with limited resources, to sort out the massive mess made by the bankers and doesn't have the time to get into all the detail.
 
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Brendan Burgess

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It seems like that the fair takeaway is that he often gets it right but that he does make mistakes on occasion.
That is a very good summary. And I would add that his hit rate is higher than the courts.

It could be that the courts are more pro-consumer. They shouldn't be. They should be independent.

But ma
 

WizardDr

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1,232
The mess was made by previous office holder. The powers are strengthened but it remains to be seen how matters panout. For example having to be aware of what is in your original letter of offer when making a changea might still seem acceptable to FSPO. Once again it Europe we turn to instead of FSPO. They should be leading the charge for consuner instead they are laggards.
 
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MaxGordon

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Totally agree with Brendan.

His job is to be fair and impartial. My criticisms of him were that I felt his judgement was biased in favour of the bank (and that the judgement was written in a way to support his decision). But let's be clear, his job is not to be biased in favour of the complainant either.

What people are looking for is that their case is fairly recorded, considered and adjudicated on. No more, no less.
 

WizardDr

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I think when AIB have the biggest legal team outside any Practice the above statements should be the exact opposite.

Most consumers are financially illiterate and relied on the toxic crutch of a bank official who believed what he told the customer.

Some of the former FSPO decisions would not be in keeping with what is evolving in Europe which is catching some by surprise.

If my memory is accurate the extension of six year rule was not in original draft of the proposed law when I read it ..

I think the FSPO has to go a lot further in assisting individuals in structuring their complaints.

That does not mean FSPO is not doing good work but they are not yet doing God's work.

I have examples that are fundamentally biased that you would wonder. For example typographical errors making total sense being upheld as a mistook.
 

Brendan Burgess

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Hi Dr
I agree that there is an imbalance between the bank and the complainant.

But it's the same in a court of law.

There should be a solution to this, but it's not to tell the Ombudsman to be biased towards the consumer.
Brendan
 

WizardDr

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1,232
@BB you have raised a very good point. There is a crucial difference and it highlights an inequality of arms. You have professional representation in court assuming you can pay for it to put your case forward. I can assure you what is put forward is not similar to what an aggrieved consumer could write.

In relation to FSPO - AIB have a team of lawyers - the complainant has nobody and if he has he cannot claim fees from the FSPO.

Being biased to the consumer simply means the benefit of the doubt. That should always be with the consumer. The alleged typographical error for example should have been found for the Consumer. It was an alleged 'mistake' but what was perfect syntax. In other words was it in fact a mistake. One case was a letter "...ECB +0.75%..." and EBS said the consumer had been told it was something else and this was accepted by the then FSPO and was the most blatant nonsense I have ever come across. Needless to say the Consumer lost but later God's work was done by Padraic Kissane.

If we had money we should name a street where the CBI hang out after him.
 

Brendan Burgess

Founder
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Being biased to the consumer simply means the benefit of the doubt. That should always be with the consumer.
Hi Doctor

I agree with you, but...

I have seen consumers claiming bizarre interpretations and then saying "contra proferentem". It's only where there really is some doubt.

Are you saying that neither the lender nor the borrower can ever claim a typo? We awl make them. I no that in contracts they should be avoided.

Brendan
 

WizardDr

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1,232
BB having looked at some of the FSPO previous decisions it would be clear that standing on his head for the lender was often the case.

For example they have not caught up with EC Court of Justice judgments in that decisions made on those cases are binding here and FSPO should at this stage be using UCT Directive and treating the cases that have preliminary rulings very seriously indeed.

The mistt0oks they have entertained are quite frankly shocking and are off the wall.
 
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